WORD COUNT CERTIFICATION:8,779

COURT OF APPEALS, STATE OFCOLORADO 2 East 14th Avenue, Denver, Colorado 80203 ___________________________________Appeal from the District Court for La PlataCounty Case Number 10CR518, 10CR71 Honorable Jeffrey Raymond Wilson ___________________________________APPELLANT:

CHARLES EDWARD TROGDON

APPELLEE:

THE STATE OF COLORADO

Attorney for Defendant-Appellant: David C. Japha, Reg. No. 14434THE LAW OFFICES OF DAVID C.JAPHA, P.C.950 S. Cherry Street, Ste. 912Denver, CO 80246Phone Number: (303) 964-9500Fax Number: 1- (866) 260-7454E-mail: DJapha4064@aol.com

� COURT USE ONLY �

CASE NUMBER: 12CA2045

CORRECTED AMENDED OPENING BRIEF

MARCH 25, 2014

Oral Argument Requested

DATE FILED: March 25, 2014 4:28 AM

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28 and

C.A.R. 32, including all formatting requirements set forth in these rules. Specifically,

the undersigned certifies that:

1. The brief complies with C.A.R. 28(g). It contains 8,779 words.

2. The brief complies with C.A.R. 28(k). It contains under a separate heading (1) a

concise statement of the applicable standard of appellate review with citation to

authority; and (2) a citation to the precise location in the record, not to an entire

document, where the issue was raised and ruled on.

i

TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS RELEVANT TO ISSUES PRESENTED FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. THE TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION TOSUPPRESS EVIDENCE

ISSUE RAISED AND RULED UPON . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

II THE EVIDENCE WAS INSUFFICIENT TO CONVICT MR. TROGDON ONEACH COUNT

ISSUE RAISED AND RULED UPON . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

ii

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

iii

TABLE OF AUTHORITIES

CASES

Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) . . . . . . . .17

Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) . . . . . . . . . . . . . . . . . . . . . . . .35

Erickson v. People, 951 P.2d 919, 923 (Colo.1998) . . . . . . . . . . . . . . . . . . . . . . 35, 36

Flippo v. West Virginia, 528 U.S. 11, 12, 120 S. Ct. 7, 145 L. Ed. 2d 16 (1999) 15

Hoffman v. People, 780 P.2d 471 (Colo.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Kogan v. People, 756 P.2d 945, 950 (Colo.1988) . . . . . . . . . . . . . . . . . . . . . . . . . 35

Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987) 14 Mendez v. People, 986 P.2d 275, 281-82 (Colo. 1999) . . . . . . . . . . . . . . . . 31, 32, 33

New York v. Belton, 453 U.S. 454, 457, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)15

People v. Ayala, 770 P.2d 1265, 1268 (Colo.1989) . . . . . . . . . . . . . . . . . . . . . . . . 36

People v. Burola, 848 P.2d 958, 964-965 (Colo. 1993) . . . . . . . . . . . . . . . . . . 10, 35

People v. Conley, 804 P.2d 240, 244-45 (Colo. Ct. App. 1990) . . . . . . .. . . . . . .17, 18

People v. Crawford, 891 P.2d 255, 258 (Colo.1995) . . . . . . . . . . . . . . . . . . . . . . .32

People v. Diaz, 53 P.3d 1171, 1176 (Colo. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 34

People v. Garcia, 752 P.2d 570, 581 (Colo.1988) . . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Gibbons, ––– P.3d ––––, ––––, 2011 WL 4089964 (Colo.App. No.

iv

09CA1184, Sept. 15, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

People v. Hearty, 644 P.2d 302, 312 (Colo. 1982) . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Kazmierski, 25 P.3d 1207, 1210 (Colo.App. 2012) . . . . . . . . . . . . . . . . 10

People v. Kluhsman, 980 P.2d 529, 534 (Colo.1999) . . . . . . . . . . . . . . . . . . . . . . .31

People v. Najjar, 984 P.2d 592, 597 (Colo.1999) . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Nelson, 25 P.3d 1207, 1210 (Colo.2001) . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Pate, 71 P.3d 1005, 1010 (Colo.2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Perez, —P.3d----, 2013 WL 1908991(Colo.App.No.10CA0587, May 9,2013,cert. granted People v. Perez, 2013 WL 6795153 (Colo. Dec 23, 2013) (NO.13SC465) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

People v. Pitts, 13 P.3d 1218, 1222 (Colo. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Quezada, 731 P.2d 730, 732-3 (Colo. 1987) . . . . . . . . . . . . . . . . . . . . . 29

People v. Roccaforte, 919 P.2d 799, 803 (Colo. 1996) . . . . . . . . . . . . . . . . . . . . . 15

People v. Rodriguez, 945 P.2d 1351 (Colo.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Rossman, 140 P.3d 172 (Colo.App., 2006) . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Schoondermark, 759 P.2d 715, 719 (Colo. 1988) . . . . . . . . . . . . . . . . . .32

People v. Smith, 13 P.3d 300, 308-309 (Colo.2000. . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Turner, 660 P.2d 1284 (Colo. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

People v. Urso, 129 Colo. 292, 297, 269 P.2d 709, 711 (1954) . . . . . . . . . . . . . . . 36

v

People v. Winpigler, 8 P.3d 439, 444 (Colo. 1999) . . . . . . . . . . . . . . . . . . . . .. . 28, 31

People v. Wright, 804 P.2d 866, 869 (Colo.1991) . . . . . . . . . . . . . . . . . . . . . . . . . 31

Sherouse v. Ratchner, 573 F.3d 1055, 1059 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . 25

Tate v. People, 125 Colo. 527, 541, 247 P.2d 665, 672 (1952) . . . . . . . . . . . . . . .36

U.S. v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 16

U.S. v. Edwards, 242 F.3d 928, 937 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Cos, 498 F.3d 1115, 1132 (10th Cir.2007) . . . . . . . . . . . . . . . . . 33

United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006) . . . . . . . . . . . . . . 33

United States v. Nicholson, 721 F.3d 1236, 1239 (10th Cir. 2013) . . . . . . . . . . . . . 25

STATUTES

§18-4-203, C.R.S. 2000, as amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

CONSTITUTIONAL AMENDMENTS

United States Constitution, Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15

Colorado State Constitution, Article II, Section 7 . . . . . . . . . . . . . . . . . . . . .12, 14, 15

vi

STATEMENT OF THE ISSUES

I. Whether the trial court erred in denying the Defendant’s Motion to Suppress

Evidence.

II. Whether there was sufficient evidence upon which the jury could find Mr.

Trogdon guilty of the sixteen counts of conviction.

STATEMENT OF THE CASE

Charles Trogdon was arrested on October 28, 2010 for burglary of the house

of customers of his extermination business – Monte and Marsha Miller. After media

accounts of the arrest, numbers of then-present and former customers contacted law

enforcement authorities in Archuleta and LaPlata Counties on the assumption that

thing stolen or missing from them had been taken by Mr. Trogdon. Mr. Trogdon was

arrested and made bail numerous times and he was subject to nine (9) search

warrants.

Numerous charges were filed against Mr. Trogdon for burglary, trespass, theft

and attempted theft. He filed a motion to suppress evidence seized after execution

of all the search warrants, which motion was denied. In January, 2012, Mr. Trogdon

went to trial on 32 counts, for 15 alleged victims. Four counts were dismissed, Mr.

Trogdon was acquitted of 11 counts by the jury and found guilty on 16 counts. He

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was sentenced on August 15, 2012 to a total of 21 years in the department of

corrections. (Rec. Vol. II, p. 574).

Mr. Trogdon appeals his convictions arguing the trial court erred in denying

his motion to suppress evidence and that the evidence that was presented against him

was insufficient to convict him.

STATEMENT OF FACTS RELEVANT TO ISSUES PRESENTED FOR

REVIEW1

Charles Trogdon was a professional pest exterminator who lived and owned

his own business in La Plata county. He worked many years in LaPlata and Archuleta

Counties. On October 27, 2010, Mr. Trogdon’s life would forever be transformed.

In an effort to contact Ms. Marsha Miller at her home, Mr. Trogdon sought paper and

pencil from her bedroom dresser to write her a note. Ms. Miller was hiding in her

bedroom closet. She stealthily observed Mr. Trogdon, whom she had suspected of

theft based on unsubstantiated rumors from Ms. Terry Sower, her friend and a former

customer of Mr. Trogdon. Ms. Miller confronted Mr. Trogdon upon his opening her

dresser drawer and asked what he was doing there. He answered, but the answer did

1. Specific citations to the relevant facts in the record are also made in the body of thearguments.

2

not satisfy Ms. Miller. Yet, she did not ask him to leave her house and continued

talking to him, and, in fact, let him give a treat to the Miller’s dog, Maggie. [Tr.

01/13/12, pp. 1227-1230]. Thereafter, Ms. Miller called the LaPlata County Sheriff

and reported what she saw - namely that Mr. Trogdon was going through her dresser

drawer. She assumed he was looking for cash, because in the past she had kept it

there. Though she did not insist that Mr. Trogdon leave, she did call authorities. [Id.]

Mr. Trogdon was charged with one count of second degree burglary in LaPlata

County after the officers heard Ms. Miller’s story. They also began a full-scale

investigation in both LaPlata and Archuleta Counties. [Tr. 1/10/12; pp. 343-346].

Ms. Miller told Officer Webb and Investigator Patterson that she saw Mr. Trogdon

rifling through her bedroom night stand where she and her husband used to keep large

amounts of cash. Notably, Ms. Miller did not see Mr. Trogdon take anything, but as

noted, confronted him about what he was doing there. [Tr. 01/10/12, testimony of

Matt Webb, pp. 326-327; Id].

After Ms. Miller’s accusations and the report were made public, many other

people came forward both in LaPlata and Archuleta Counties. In total, nine search

warrants were executed on Mr. Trogdon’s property. [Tr., 05/09/11, 9:17-22; 13:1,

15-24; Record, Envelope #4, containing all 9 Affidavits and Search Warrants,

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Defendant’s Motions Hearing Exhibits 1-9].

The November 30, 2010 affidavit sought authority to seize a gold serpentine

style bracelet; another gold bracelet; 98 Mauser 65.06; A Winchester rifle moder #70

364 .308 caliber; two silver goblets; a white gold ring with a red ruby in the middle;

a new Henry Big Boy lever action rifle, serial number BB08669; two earing studs

described as yellow gold with a two caret diamond on each, valued at $10,000.00;

cash over $1,000.00; two rope style gold necklaces; 12-18 inches long; and old watch

with about 300 small diamonds; computers; safes and business records for

Professional Exterminator (the name of Mr. Trogdon’s company). See Defendant’s

Exhibit 1 from Motions Hearing 09/07/11.

According to the Sworn Return and Inventory for Search Warrant [id], what

officers recovered after the November 30, 2010 search was: The Henry Big Boy

Rifle; $10,000.00 cash; Sig sauer pistol model #SP2022 .40 cal, S#SP0121445;

Walther pistol moder #P22 S# L212823; Browning 22 pistol S# 655PV01750;

Mossberg 12 Gauge Model #590 S#K422878; Norinco rifle 7.65 by 39 S# 3147335;

colt pistol Model 90 lightweight S# GT01897; Smith and Wesson revolver stainless

steel .44 magnum model #629 S# BRB9755; Ruger .22 Cal. Msark 2 Target pistol

S#213-40889; Mauser Modelo Argention 1891 rifle S# S8440. A simple comparison

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between what was sought and what was seized (based on the sworn affidavit of

Officer Patterson) shows that only the Henry Big Boy and the cash were on the search

warrant. According to Officer Patterson, there was a considerable amount of jewelry

(about 50 pieces) recovered and this was photographed. In addition to what was

noted on the inventory there were a number of more firearms and fifty pieces of

assorted jewelry. [ Tr., 09/07/11, 62:2-6, 30:18-22].

When law enforcement officers encountered the guns, some of which were in

cases or scabbards, they opened the casings to see whether it housed a weapon they

were searching for. [Tr., 09/07/11, 63:11-14]. In addition to determining whether the

guns matched the rifles described in the warrant, law enforcement officers also

moved the guns to record their serial numbers. [Tr., 09/07/11, 57:3-12, 86:3-11].

When law enforcement officers encountered the Defendant’s jewelry, they laid it out

on a bed to be photographed. [Tr., 09/07/11, 29:1-7].

Following this search, Investigator Patterson began checking the serial

numbers of the guns through the national databases to see if any were stolen. When

a few returned stolen, he returned to the residence, seized the guns and arrested Mr.

Trogdon for yet a second time. He was first arrested on October 28, 2010. [Tr.,

09/07/11, 87:22-25, 88:1].

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As more items were checked, and were found to be stolen based on their serial

numbers, in some cases, or pictures shown to prospective victims in other cases, more

victims came forward. As a result, eight more search warrants were issued seeking

to search Mr. Trogdon’s home. [Envelope 4, Defendant’s Exhibits 2-9, 09/07/11].

Many of the affidavits were based on the same information and the warrants sought

much of the same property. Based on the recovered evidence, Mr. Trogdon was

charged in multiple cases that were ultimately consolidated into the LaPlata case,

number 10CR518.

On July 25, 2011, Mr. Trogdon’s attorneys filed a motion to suppress the fruits

of the November 30, 2010 search from evidence. [Vol. 1, pp. 164-186]. An

evidentiary hearing was held on September 7, 2011, and the trial court issued a

written ruling denying the motion on September 21, 2011. [Vol. 1, pp. 225-232].

Mr. Trogdon’s trial began on January 9, 2012. The jury returned their verdicts

on January 18, 2012. At trial, the Prosecution showed the jury 33 different stolen

items, guns, tools, bows an a ring. The people who believe that Mr. Trogdon stole

those items from them testified at trial. The fifteen victims testifying regarding the

32 counts accusing Mr. Trogdon of burglary, trepassing, attempt theft and theft are

set forth in Jury Instruction No. 2,[ Rec. Vol. II, pp. 396-397]. As noted above, Mr.

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Trogdon was convicted of 16 of those counts. [Rec. Vol. II, pp. 567-575].

Beginning with Ms. Miller and through to Pam Lynd, the entirety of the

prosecution’s case was built upon either the finding of property that was labeled as

stolen in Mr. Trogdon’s house years after it had either been reported or suspected

stolen, or based on assumptions and inferences drawn from those assumptions.

The prosecution’s theory of the case was that Mr. Trogdon used his position

as a trusted exterminator to go into people’s homes unannounced and steal from them

a little at a time. [Rec. 01/10/10, p. 298, lines 16-22; p. 313, lines 11-16]. It was Mr.

Trogdon’s theory that the people were building a case based upon drawing inferences

from faulty assumptions. [Rec. 01/10/10, p. 314].

The jury returned its verdicts of guilty and not-guilty on January 18, 2012 [Rec.

01/18/12; pp. 1463-1468; Vol. III, pp. 480-483]. Specifically, Mr. Trogdon was

convicted of second degree burglary from Monte and Marsha Miller, Count 1, though

there is no property associated with this in so far as Ms. Miller said she did not see

him steal anything [Rec. 01/13/10, pp. 1341-1342]. Mr. Trogdon was convicted or

Count 3, misdemeanor theft, from Thomas Jones for the Henry Big Boy that was

found at his property on November 30, 2010. Based on the Ruger .22 Caliber that

was seized, but not listed in the November 30, 2010 warrant, Mr. Trogdon was

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convicted of count 7, misdemeanor theft from Mr. John T. Llewellyn. Mr. Trogdon

was convicted in count 9, of misdemeanor theft for stealing from Janice Roberts, a

.38 caliber Rossi. This was found at a later search.

Mr. Trogdon was also convicted of Count 11, criminal attempt to commit theft

based on testimony from Vernon and Terry Sower. Like in the case of the Millers,

no property was actually taken and could not be linked to Mr. Trogdon.

For weapons taken from Mr. William Neder, Mr. Trogdon was convicted of

Counts 14, 15 and 18. Mr. Trogdon was convicted also in Count 19 for stealing a

safe, 8 firearms, ammunition magazines, currency and flashlights, from Mr. Neder.

All of these items were taken in 2007 or 2008. Mr. Neder was not able testify with

certainty about when they were taken. But, it was some years before the search in

November, 2010. [Rec. 01/12/12, pp. 1063-1070].

Mr. Trogdon was convicted in Count 17, for theft of two shotguns, bow, bags

and climbing gear from Todd Shelton. These items were also recovered after the

original search on November 30, 2010. From Paul Day, Mr. Trogdon was convicted

in County 21 of first degree criminal trespass. It is instructive to note that on two

other counts involving Mr. Day, Mr. Trogdon was acquitted – theft of $30,000.00

cash and second degree burglary. [Rec. 01/18/12, pp. 1466-1467].

8

Mr. Trogdon was convicted of stealing tools from Arthur Combs in Count 26,

resulting in a conviction of a class 2 misdemeanor. From Ms. Elaine Hyde, Mr.

Trogdon was convicted of Counts 27 and 28 of a class 3 felony for second degree

burglary and a class 4 felony for theft for stealing a diamond ring, a gold necklace and

a gold coin. Ms. Hyde was not able to identify the ring from a picture, according to

the detective who showed her the picture. [Rec. 01/13/12, pp. 1274-1276; see also,

Rec. 01/12/12, pp. 1025 and 1034]. Ms. Hyde reported the thefts in December, 2009

and testified that Mr. Trogdon always made appointments to come do work. There

was no testimony that he was in her house unlawfully. [Rec. 01/12/12, pp. 1025-

1034].

Mr. Trogdon was convicted of Count 30, theft from Bill Dawson of a Norinco

Ak-47, resulting in a class 1 misdemeanor. Finally, Mr. Trogdon was convicted of

Count 32, a class 4 felony for the theft of a Ltd Edition Marlinn Rifle from Pam Lynd.

It is Mr. Trogdon’s contention that the property for which he was convicted

should have been suppressed and not allowed into evidence. Further, the testimony

from the victims and law enforcement together with evidence introduced was

insufficient to convict Mr. Trogdon of the crimes of conviction because all of it

required inferences that needed to be drawn from other inferences. For these reasons,

9

Mr. Trogdon requests his convictions to be reversed.

ARGUMENT

I. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’SMOTION TO SUPPRESS EVIDENCE, WHICH ERROR WAS NOTHARMLESS BEYOND A REASONABLE DOUBT

ISSUE RAISED AND RULED UPON: The issue presented was raised by the

Defendant’s suppression motion filed July 26, 2011 (Vol. I, p. 164-186), and denied

on by District Judge Wilson in his written order on September 21, 2011 (Vol. I, pp.

225-232). The trial court heard testimony at a hearing on motions on September 7,

2011. Rec., Tr. September 7, 2011, passim.

STANDARD OF REVIEW: A ruling on a motion to suppress requires the trial court

to make findings of historical fact and apply controlling legal standards to the

established facts. People v. Pate, 71 P.3d 1005, 1010 (Colo.2003). “The trial court's

findings of historical facts are entitled to deference and will not be overturned if

supported by competent evidence in the record.” Id. However, the appellate court

analyzes de novo the trial court's application of legal standards to those facts as a

question of law. People v. Kazmierski, 25 P.3d 1207, 1210 (Colo.2001), all cited in

People v. Nelson, 296 P.3d 177, 182 (Colo. App. 2012). See also, People v. Burola,

848 P.2d 958, 964-965 (Colo. 1993)

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SUMMARY OF THE ARGUMENT: Law enforcement officers conducted a search

of Mr. Trogdon’s home on November 30, 2010. However, the warrant sought out

specific property. Officers found and seized many items that were not in that warrant.

In an effort to clean up the warrantless searches of Mr. Trogdon’s home and to

provide warrants for property already seized, officers came back with new warrants

on eight more occasions. Mr. Trogdon argues that it was improper to try to correct

the warrantless search and that any of the items seized after November 30, 2010

should have been suppressed. Further, the items of import have been identified in the

fact section above and the admission of those items was not harmless beyond a

reasonable doubt.

Mr. Trogdon argues that the plain view and inevitable discovery exceptions do

not apply in this case. Further, in it ruling, the trial court then made findings of fact

and conclusions of law that were incorrect and not supported by the record as to law

enforcement possessing probable cause for the search. The trial court also found

exigent circumstances existed but applied the incorrect legal standard and made no

findings of fact that would support the correct legal standard. The warrantless search

was not valid, and the fruits cannot besaved by an exception to the exclusionary rule.

The evidentiary fruit resulting from the warrantless search of the Mr.

11

Trogdon’s home was obtained in violation of the Mr. Trogdon’s rights under the

Fourth Amendment to the Constitution of the United States and Article II, Section 7

of the Colorado Constitution, and therefore should have been suppressed from

evidence at trial.

DISCUSSION

A. The Plain View Exception to the Warrant Requirement Does Not Justify the

Warrantless Search

As the trial court noted in the Order Regarding Motions, the Defendant’s

suppression motion did not challenge the legality of the November 30, 2010 warrant

that authorized the first search of his home. Vol. I, p.226. Rather, the Defendant

argued that law enforcement officers illegally exceeded the authority granted by the

November 30, 2010 search warrant, and in so doing, discovered the evidence which

led to his arrest, subsequent searches of his home, and ultimately this case. Vol. I,

p.1667.

In addition, the trial court should have suppressed the money. It was described

in the Affidavit for Search Warrant and in the Search Warrant as “large amounts of

cash (over $1000.00),” Rec. Envelope 4, Nov 30 2010, Exhibit 1 in Motions hearing

held on 7 Sept 2011. On the Return and Inventory for Search Warrant (Id.),

12

$10,000.00 cash is reported having been recovered. The identification of the cash

was not specific as to denominations of the bills and other indicia of reliability. The

Millers (Conviction Count 1) never described with particularity the denominations

of the bills they kept.

Mr. Trogdon’s counsel argued this in their written Motion to Suppress, Vol. I,

p. 169, ¶¶ 17 - 19. The trial court did not specifically address the cash in his written

order issued on September 21, 2011 and there does not seem to be any request for

reconsideration of that order or objection to the introduction of the mention of the

cash at trial. At no time during her testimony at trial was Ms. Miller asked to identify

any of the cash that was recovered. A review of her testimony both at the preliminary

hearing (Tr. May 19, 2011, pp. 8-36) and at trial (Tr.01/13/12, pp. 1213-1244), makes

this clear.

In addition, Deputy Sheriff Dan Patterson testified that though $10,000.00 in

cash was recovered at Mr. Trogdon’s property during the search on November 30,

2011, there was no way that he could know whether it was connected with the Millers

or any other alleged victim. See, Tr. Jan 10, 2012, pp. 365 (l. 25) -366 (ll. 1-6). And,

note, too, Investigator Patterson testified that they were search for “tens of thousands

of dollars worth of cash.” Tr. Jan 10, 2012, p. 366, lines 8-9. The Millers had

13

reported losing $4,400.00 on or about October 27, 2010 and about $1,400.00 on two

prior occasions, though Mr. Trogdon was never charged with these alleged thefts.

At the evidential hearing on the motion to suppress, Investigator Patterson also

testified that there was no identifying information regarding either the cash missing

from the Millers or from another alleged victim, Paul Day. Mr. Day claimed to have

had $30,000.00 cash stolen from his house. See, Tr., Motions Hrg. 09/07/11, pp. 71-

72. See also, the Affidavit for Search Warrant, Defendant’s Ex. 1, to Motions

Hearing. Note that search warrant 10 SW 89, Defendant’s Exhibit 1 to the Hearing

on Motions, included information from Archuleta cases as well. Rec. Tr., 9/7/2011,

p. 37, lines 12-17.

“No warrant shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched and the persons or

things to be seized.” U.S. Const. amend. IV, see also Colo. Const. art. II, § 7. The

Fourth Amendment and Article II §7’s particularity requirements serve to “prevent

general searches.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94

L.Ed.2d 72 (1987). “The requirement ensures that the search will be carefully tailored

to its justifications, and will not take on the character of the wide-ranging exploratory

searches the Framers intended to prohibit.” Id. The particularity requirements also

14

demand sufficient descriptions such that they “enable the executing officer to

reasonably ascertain and identify the things authorized to be seized.” People v.

Roccaforte, 919 P.2d 799, 803 (Colo. 1996); People v. Hearty, 644 P.2d 302, 312

(Colo. 1982) (particularity requirement “prevents the seizure of one thing under a

warrant describing another”).

In this case, it is not disputed that law enforcement’s “photographing of the

jewelry and recording serial numbers of all the guns at the defendant’s house was a

search of the defendant’s home that was not authorized by the initial warrant.” Vol.

I, 226-7 (Order Regarding Motions). That this law enforcement conduct exceeded

the warrant’s scope and became a warrantless search is an admitted fact.

A warrantless search is presumptively “invalid unless it falls within one of the

narrow and well-delineated exceptions to the warrant requirement.” Flippo v. West

Virginia, 528 U.S. 11, 12, 120 S. Ct. 7, 145 L. Ed. 2d 16 (1999); New York v. Belton,

453 U.S. 454, 457, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (“It is a first principal

of Fourth Amendment jurisprudence that the police may not conduct a search unless

they first convince a neutral magistrate that there is probable cause to do so”);

Hoffman v. People, 780 P.2d 471 (Colo.1989). While the Constitution of the United

States and the Colorado Constitution treat warrantless searches similarly, Article II,

15

§ 7, of the Colorado Constitution affords even broader protections than the Fourth

Amendment. People v. Rodriguez, 945 P.2d 1351 (Colo.1997); People v. Rossman,

140 P.3d 172 (Colo.App.,2006). The Government bears the burden of proof in

justifying a warrantless search. U.S. v. Anderson, 154 F.3d 1225, 1233 (10th Cir.

1998); U.S. v. Edwards, 242 F.3d 928, 937 (10th Cir. 2001) (“Thegovernment has the

burden of proving that an exception to the warrant requirement applies”).

In this case, the People attempted to justify the warrantless search as falling

within the Plain View exception to the warrant requirement. Tr.,09/07/11,117:18-19.

The Plain View exception to the warrant requirement does not require law

enforcement officers to “close their eyes to any evidence they plainly see while

conducting otherwise legitimate searches.” Peoplev. Pitts, 13 P.3d 1218,1222(Colo.

2000). Rather, police may seize any evidence in plain view “so long as: (1) the initial

intrusion onto the premises was legitimate; (2) the police had a reasonable belief that

the evidence seized was incriminating; and (3)the police had a lawful right of access

to the object.” Id.

Here, Mr. Trogdon does not contest the initial search or the warrant, save the

identification of cash. Therefore, the first prong of the Plain View exception to the

warrant requirement is not contested either.

16

The second prong of the Plain View exception to the warrant requirement

demands that police have more than reasonable suspicion to believe the objects in

plain view are incriminating, they must have probable cause to believe the evidence

is incriminating and the incriminating nature must be immediately apparent. See

Arizona v. Hicks, 480 U.S. 321, 326-28, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987);

People v. Smith, 13 P.3d 300, 308-309 (Colo.2000); People v. Najjar, 984 P.2d 592,

597 (Colo.1999).

For example, “[i]f, during a search, a police officer sees stereo equipment that

he suspects, but has no probable cause to believe, is stolen property, the officer may

not move the equipment to record its serial number without violating the

constitutional prohibition against an unreasonable search and seizure. The ‘plain

view’ exception may be invoked only if the serial numbers can be recorded without

moving the equipment, because then no possessory interest is involved.” People v.

Conley, 804 P.2d 240, 244-45 (Colo. Ct. App. 1990).

The November 30, 2010 search warrant authorized law enforcement officers

to search Mr. Trogdon’s home for a limited number of very specific items that were

meticulously described in the warrant itself. However, instead of finding the all of

the listed property, they found that some of the things sought were not there, but also

17

that there were many more things. [Tr., 09/07/11, 79:17-20] (Q: “Were all of the rifles

kept in cases that required you to open them to inspect the rifles?” A: “I can’t

remember specifically if they all were, but it seems to me like they were”). Given the

three sought-after rifle’s very specific descriptions, once the cases were open it

should have been immediately apparent whether or not the police had found what

they were looking for, especially since Investigator Patterson described himself as

being “fairly familiar” with rifles and their makes. [Tr., 09/07/11, 86:3-5]. Notably,

the police didn’t even have serial numbers for two of the three rifles they were

searching for. [Tr., 09/07/11, 67:17-20.]

When the police observed that a particular rifle was not described in the

warrant, their authority under the warrant to search that specific firearm and its case

ended. Absent probable cause to believe that each individual rifle was “stolen

property, the officer may not move the equipment to record its serial number without

violating the constitutional prohibition against an unreasonable search and seizure.”

Conley, 804 P.2d at 244.

Mr. Trogdon acknowledges that some of the rifles’ serial numbers were

exposed to plain view upon opening the cases, however, law enforcement failed to

note for which rifles this was the situation and there was no evidence presented to

18

the trial court that would differentiate the rifles with serial numbers in plain view

from the rifles for which the police “had to roll the rifle over because the serial

number was on the other side.” [Tr., 09/07/11, 67:6-12]. Since it was the People’s

burden to prove by a preponderance of the evidence that the search was valid, the

absence of evidence differentiating the two situations prevents them from arguing

to save some of the rifles since there is no way to know which rifles could

theoretically be saved.

Investigator Patterson testified as follows:

Q: “When you opened up one of the rifle cases, for instance, is it fair to say that

when you opened it up, whether you recognized it as one of the three rifles that you

were searching for or not, you were intent on taking the serial number from it?”

A: “Yes.”

Tr., 09/07/11, 86:3-11. This shows that law enforcement intended to “bootstrap” the

evidence into admissible evidence. Officer Patterson knew he had a “poison”

problem. It is not a stretch to suggest, based on Officer Patterson’s testimony during

the suppression hearing that he had a suspicion that he would find stolen property at

Mr. Trogdon’s house, that he set up a warrantless search, and devised a way to try to

save it later. Hence, the photographs.

19

During the search, law enforcement officers continued to completely ignore

any possessory interest Mr. Trogdon or Mrs. Trogdon may have had in their jewelry

that was not described in the warrant – which was all of it. At the motions hearing,

Investigator Patterson was asked on cross-examination:

Q: “So that’s what you did, asked about the jewelry or you saw the jewelry, you took

it out, put it in the kind of position that somebody could photograph it so you could

document all the jewelry in the house?”

A: “Yes.”

Q: “That was true, whether it was a bracelet or a ring, you were just taking all the

jewelry to see if in the future sometime somebody might identify it as having been

stolen?”

A: “Yes.”

[Tr., 09/07/11, 77:22-25, 78:1-6]. The Trogdons’s bedroom was “covered with

jewelry” that was “laid out” on display to be photographed. [Tr., 09/07/11, 29:1-7].

In total, law enforcement estimated that they found, moved, and photographed

“maybe 50” pieces of jewelry of “all different kinds.”[ Tr., 09/07/11, 30:18-22,

31:2-7]. This action was taken despite law enforcement knowing that they were

moving and photographing jewelry that was not described in the warrant.[Tr.,

20

09/07/11, 87:3-6]. This is precisely the kind of general exploratory search tantamount

to a rummaging that the Framers intended to prohibit.

Notably, law enforcement officers had two additional reasons for their conduct

with respect to the jewelry: First, it was done for convenience; in anticipation of the

jewelry being stolen the police did not want to have to execute multiple search

warrants. [Tr., 09/07/11, 106:3-14]. Secondly, the police wanted to photograph all

the jewelry “in case a victim might be able to identify it.” [Tr., 09/07/11, 77:18-20].

At the time law enforcement officers had no knowledge of any victims beyond those

already described in the warrant.

This conduct cannot satisfy the second prong of the Plain View exception to

the warrant requirement. Law enforcement officers did not have probable cause to

believe that any of the items they found were stolen. All facts leading the

investigation to Mr. Trogdon were contained in the November 30, 2010 warrant’s

supporting affidavit. [Tr., 09/07/11 46:14-25, 47:1]. A neutral and detached

magistrate determined that there was probable cause to search for the items listed in

the warrant. However, law enforcement went into the search with a suspicion that

they would find more items [Tr., 09/07/11, 57:25, 58:1-4]. The record is replete with

examples that the incriminating nature of the firearms and jewelry was not

21

immediately apparent. In fact, law enforcement’s sense of what was potentially stolen

was so general that they “felt like under the circumstances that if there was a picture

on the wall that it could have been stolen and I wanted to document it. So I pretty

much documented his whole house.” [Tr., 09/07/11, 32:13-17].

The jewelry was moved and photographed “to see if in the future sometime

somebody might identify it as being stolen,” and “in case a victim might be able to

identify it,” not because it was clearly stolen goods. Tr., 09/07/11, 77:18-25, 78:1-6.

The way Investigator Patterson treated the located guns was similar with

regard to the lack of an incriminating nature. Investigator Patterson has his own

policy about searching firearms that he applied to this case: “As a general rule, I have

always checked serial numbers on any weapons I come in contact with to make sure

they’re not stolen, whether it’s a search warrant or a traffic stop or whatever the case

may be, and it’s every time we opened up a case and looked at the weapon, we went

ahead and documented the serial number.” [Tr., 09/07/11, 57:3-12].

The record even goes so far as to show that had the incriminating nature of the

evidence observed in plain view been immediately apparent, Investigator Patterson

would have seized it:

Q: “If you, Officer, are involved in a search warrant and you see things that you

22

believe are contraband, whether it’s noted in the search warrant or not, you would

take that into your possession, would you not?”

A: “Yes.”

Q: “If you were involved in a search warrant and things that you say – yourself use

the term plain view and that when you looked at them you knew, even if it wasn’t in

the search warrant, that these things were illegal, you would take them.” A: “Yes.”

[Tr., 09/07/11 94:13-24]. Investigator Patterson did not take a single gun or a single

piece of jewelry during the search pursuant to the November 30, 2010 warrant.

There is nothing in the record to support the conclusion that any particular one

of the forty-two guns was stolen as opposed to owned by Mr. Trogdon, as ownership

interests can’t be readily discerned by mere possession and Investigator Patterson’s

intent was to check the serial numbers later to see if the guns were stolen.

Investigator Patterson’s conduct is a far cry from happening upon an item

where there is probable cause to believe the item is stolen and its incriminating

nature is immediately apparent. Neither the probable cause nor the immediacy and

incriminating nature requirements of the Plain View exception to the warrant

requirement were satisfied. Any items in plain view were indiscriminately moved,

searched, and recorded, without regard to the strict constitutional requirements

23

governing these actions.

B. The Trial Court’s Findings of Fact and Conclusions of Law Regarding

Probable Cause Were Incorrect and Not Supported By the Record

The trial court elected to save the searches (of which there appear to be roughly

one hundred individual warrantless searches) by finding that Investigator Patterson

had probable cause to conduct a warrantless search of the forty-two guns and

numerous pieces of jewelry. Vol. 1, p.227. In the Order Regarding Motions, the trial

court found Investigator Patterson possessed a suspicion that everyone who had used

the Defendant’s exterminator services was a potential victim, and that this suspicion

“grew into probable cause during thesearch.” Vol. I, p.227. The trial court based this

conclusion on three things: First, the November 30, 2010 warrant named eight

victims who had previously employed the Defendant. Id. Second, the Defendant had

“conducted his pest control business for at least eight years and had presumably been

in numerous homes in the two counties,” with more victims coming forward as the

case progressed. Id. Third, the first two factors combined with the large amount of

jewelryand guns amounted to probable cause to believe that “most of the jewelry and

guns, if not all of them, were stolen.” Id.

The trial court’s finding of probable cause, however, is directly contradicted

24

byInvestigator Patterson’s own admission that he did not possess probable cause to

conduct a warrantless search. (“I felt I had reasonable suspicion to believe that most

of those guns might be stolen”) Tr., 09/07/11, 69:2-3 (emphasis supplied).

Investigator Patterson has been employed as a law enforcement officer with

the La Plata County Sherriff’s Office for twenty years and was the lead investigator

on the case. [Tr., 09/07/11, 43:3-13]. A twenty-year veteran lead investigator knows

the difference between probable cause and reasonable suspicion. See, e.g., United

States v. Nicholson, 721 F.3d 1236, 1239 (10th Cir. 2013) (“[m]istakes of law made

by an officer are objectively unreasonable”), see also Sherouse v. Ratchner, 573 F.3d

1055, 1059 (10th Cir. 2009) (“While an officer’s reasonable but mistaken

understanding of the facts justifying a search or seizure does not negate the

legitimacy of a probable cause determination, an officer’s reasonable but mistaken

understanding of the applicable law he is enforcing does”).

If Investigator Patterson believed he had probable cause he would have said

so. Instead, Investigator Patterson testified under oath that he possessed reasonable

suspicion, and the court must take him at his word. Moreover, Investigator Patterson

testified that he believed most of the guns might be stolen, but failed to specify (and

the trial court’s ruling omits this as well) how he would know which of the guns

25

might not be stolen. That is, the record lacks any indication which would allow the

trial court to find Investigator Patterson had any way to distinguish between the guns

he thought might be stolen and the ones he thought were legitimately owned. Since

he believed that only most of the guns might be stolen, Investigator Patterson

reasonably believed that some unknown portion of the guns was lawfully Mr.

Trogdon’s property, and had no way of knowing which ones were which. Also of

note is that trial court expanded Investigator Patterson’s suspicion to include “most,

if not all of them [the guns],” instead of just “most of those guns.” [Vol 1., p. 227, Tr.,

69:2-3].

Additionally, and as noted above, Investigator Patterson’s lack of probable

cause is emphasized by his actions: no guns were seized. If Investigator Patterson

had probable cause to believe the guns were stolen, and the incriminating nature of

those guns was immediately apparent, then he would have seized them. To have done

otherwise means that a seasoned law enforcement officer allowed firearms which he

had probable cause to believe were stolen remain in the possession of the man he

believed had stolen them. The likelihood of this scenario is so remote as to be

non-existent, and is in fact confirmed to be non-existent by Investigator Patterson’s

own testimony.

26

Even setting aside Investigator Patterson’s words and conduct which do not

support the ruling, the trial court’s reasoning does not support a finding that probable

cause existed to conduct a warrantless search. The trial court’s first supporting factor

is that the warrant named eight victims who had previouslyemployed Mr. Trogdon.

Vol. 1, p.227. Howeverthisfactoradds little to the probable cause calculation and

fundamentally amounts to a propensity argument.

The trial court was correct that the investigation had turned up eight victims.

The trial court was also correct that a search warrant had issued for Mr. Trogdon’s

residence. Thesefactsonlyshow that law enforcement had sufficient cause to obtain

a search warrant for thelisted items which werenot foundat Mr. Trogdon’s home. The

totality of information gathered by the investigation was included in the supporting

affidavit, and the record does not show that any new information was gained by law

enforcement between signing the affidavit and executing the warrant later the same

day.

Instead, the trial court’s reasoning here is that the issuance of a search warrant

for items not found can help support probablecauseto believethatdifferentitemsmay

somehow be illicit. This reasoning defeats the purpose of the warrant requirement

and runs the risk of expanding warrants well beyond their authorized scope.

27

The trial court’s second basis was that Mr. Trogdon “conducted his pest control

business for at least eight years and had presumably been in numerous homes in the

two counties.” Vol. 1, p.227. This, again, fails to add any meaningful analysis to the

probable cause calculation. The trial court had no basis in the record, or any other

way of knowing, whether Mr. Trogdon had actually been in anyone’s home besides

the eight listed victims. For example, there was nothing before the trial court at the

motions hearing to say that Mr. Trogdon never had any employees. The trial court

here is presuming that Mr. Trogdon’s business history was essentially a front,

granting him access to unsuspecting individuals’ homes where he had the

opportunity to steal. This is pure speculation by the trial court, and cannot help form

the basis for probable cause.

Finally, the trial court combined the first two factors with the quantity of

jewelry and guns found, and determined that probable cause existed to believe that

“most of the jewelry and guns, if not all of them, were stolen.” Id. “Although the

constitutional requirement of a warrant can be excused if exigent circumstances are

present, the probable cause requirements are at least as strict in warrantless searches

as in those [executed] pursuant to a warrant.” People v. Winpigler, 8 P.3d 439, 444

(Colo. 1999) (internal quotations omitted). Probable cause “requires the police to

28

establish that reasonable grounds existed to believe that contraband or evidence of

criminal activity was located in the area to be searched” based on a totality of the

circumstances. Id.

The police established probable cause to search Mr. Trogdon’s home for a

limited number of specific items based on the complaints of eight alleged victims.

The police suspected Mr. Trogdon’s pest control business was the link between

‘cold’ burglary cases and recovering the missing property. Once in Mr. Trogdon’s

home, the police failed to find any of the items which the totality of their

investigation led them to believe would be there. However, the trial court found that

sheer volume of items not believed to be stolen at the time amounted to a reasonable

basis to believe that “most […] if not all” of those items were in fact stolen. [Vol. 1,

p. 227]. This stretches the meaning of probable cause analysis beyond its breaking

point.

In addition the logically flawed reasoning, the trial court’s ruling was not

supported by the record, in fact it was contradicted by it, and therefore the ultimate

constitutional decision is properly subject to correction on appeal. See People v.

Quezada, 731 P.2d 730, 732-3 (Colo. 1987) (“A court's findings of historical fact are

entitled to deference by a reviewing court and will not be overturned if supported by

29

competent evidence in the record.... An ultimate conclusion of constitutional law that

is inconsistent with or unsupported by evidentiary findings, however, is subject to

correction by a reviewing court, as is a court’s application of an erroneous legal

standard to the facts of the case”) (emphasis supplied).

To this point, Mr. Trogdon notes that the trial court found only that

Investigator Patterson possessed probable cause as to the guns and jewelry. The trial

court did not find that the Plain View exception to the warrant requirement (the

People’s justification for the warrantless search) applied as it made no findings of

fact as to the incriminating nature of the jewelry and guns. Therefore, the trial court

could not have believed that the People had proved the Plain View exception applied

to this warrantless search.

C.The Trial Court Applied an Incorrect Legal Standard to the Exigent Circumstances

Doctrine and Its Findings of Fact and Conclusions of Law Are Insufficient to Support

the Exception

Since the trial court did not make any findings of fact or conclusions of law

regarding the incriminating nature of the warrantless search’s objects, yet

acknowledged that a warrantless search occurred, a different exception to the warrant

requirement (one not argued by the People) must apply for the search to pass

30

constitutional standards. In its Order Regarding Motions, the trial court justifed the

warrantless search as being permissible under exigent circumstances. Vol. 1, p.227.

“A warrantless search is invalid unless it is supported by probable cause and is

justified under one of the narrowly defined exceptions to the warrant requirement.”

Mendez v. People, 986 P.2d 275, 281-82 (Colo. 1999), People v. Garcia, 752

P.2d 570, 581 (Colo.1988). “One such exception applies when exigent

circumstances exist that necessitate immediate police action.” Id., People v.

Kluhsman, 980 P.2d 529, 534 (Colo.1999). Colorado courts have “recognized the

exigent circumstances exception in the following three situations: (1) the bona fide

“hot pursuit” of a fleeing suspect; (2) the risk of immediate destruction of evidence;

and (3) a colorable claim of an emergency which threatens the life or safety of

another.” People v. Winpigler, 8 P.3d 439, 443-44 (Colo. 1999). “The scope of the

intrusion must be strictly circumscribed by the exigency justifying the initiation of the

warrantless intrusion.” Id., People v. Wright, 804 P.2d 866, 869 (Colo.1991).

The trial court found that an exigency existed because “Investigator Patterson

had no way of knowing while conducting the search that the weapons and jewelry

would not be disposed of or hidden by the defendant or his wife after the officers

completed their search.” Vol. 1, p. 227. This is not the correct legal standard for

31

justifying a warrantless search on exigent circumstances.

The correct legal inquiry courts must make when determining whether the risk

of immediate destruction of evidence exists is: “whether there is a real or substantial

likelihood that the contraband or known evidence on the premises might be removed

or destroyed before a warrant could be obtained.” People v. Turner, 660 P.2d 1284,

1288 (Colo. 1983), disapproved on other grounds by People v. Schoondermark, 759

P.2d 715, 719 (Colo. 1988). Moreover, “this perceived danger must be real and

immediate.” Mendez, 986 P.2d at 282, People v. Crawford, 891 P.2d 255, 258

(Colo.1995). “The mere fact that evidence is of a type that can be easily destroyed

does not, in itself, constitute an exigent circumstance.” Id.

The trial court did not make findings of fact or conclusions of law as to a real

or substantial likelihood that evidence would be removed or destroyed before a new

warrant could issue. The trial court’s ruling is similarly absent any findings of fact

or conclusion of law as to the veracity or immediacy of that danger.

Instead, the trial court found only that Investigator Patterson “had no way of

knowing” if the guns and jewelry would be preserved. This finding does not fall

within one of the “narrowly defined exceptions to the warrant requirement.” Id, at

281. If Investigator Patterson really possessed probable cause to believe the guns and

32

jewelry were stolen, then he would have either seized the property or secured the

residence while seeking a new search warrant. Investigator Patterson did neither,

and his actions contradict the trial court’s finding of exigency in both its immediacy

and its veracity.

D. No Exception to the Exclusionary Rule Applies in This Case

“The Supreme Court adopted a good-faith exception to the application of the

exclusionary rule and specifically applied that exception where‘an officer acting with

objective good faith has obtained a search warrant from a judge or magistrate and

acted within its scope,’ even though the search warrant was later deemed to be

invalid.” United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006). “In this

circuit, we have concluded that ‘Leon's good faith exception applies only narrowly,

and ordinarily only when an officer relies, in an objectively reasonable manner,on a

mistake made by someone other than the officer.’ ” United States v. Cos, 498 F.3d

1115, 1132 (10th Cir.2007) (quoting Herrera, 444 F.3d at 1249). Since the issue in

this case is that of a warrantless search, the Good Faith exception to the exclusionary

rule does not apply.

Similarly, the Inevitable Discovery exception to the exclusionary rule does not

apply. “The ability to subsequently obtain a lawful search warrant, after the illegal

33

search has occurred, does not satisfy the inevitable discovery exception

requirements.” People v. Diaz, 53 P.3d 1171, 1176 (Colo. 2002). Additionally,

“[e]vidence is not admissible under the inevitable discovery exception based on

speculation that the evidence would have been discovered anyway.” Id. “The

prosecutor must establish that there was a reasonable probability that the evidence

would have been discovered in the absence of police misconduct, and that the police

werepursuing an independent investigation at the time the illegality occurred.” Id.

The evidence before the trial court on the Defendant’s motion to suppress does not

fulfill the Inevitable Discovery doctrine’s requirements. To the contrary, the

unjustified warrantless search provided law enforcement with the photographs and

serial numbers which formed the basis of each subsequent search warrant and the

lynchpin of the People’s case. Without the photographs or serial numbers, law

enforcement would have entirely lacked the ability to connect Mr. Trogdon’s

property to burglaries, especially the property on the counts of conviction. Any theory

to the contrary is at best speculative ,and notably was not established by the People

at the hearing.

Based on all of the foregoing, and the fact that the People relied heavily on the

evidence improperly admitted to obtain the convictions they did. The trial court’s

34

error in admitting the evidence against Mr. Trogdon, despite the illegal searches, was

not harmless beyond a reasonable doubt. People v. Burola, 848 P.2d 958, 964-965

(Colo. 1993).

II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT MR. TROGDONON EACH COUNT

ISSUE RAISED AND RULED UPON: This issue is raised by virtue of Mr.

Trogon’s convictions. He seeks a ruling from this court ordering his convictions

vacated and remanding the matter to the trial court for entry of judgments of acquittal

on all counts of conviction.

STANDARD OF REVIEW: This Court reviews a sufficiency of the evidence claim

“de novo to determine whether the evidence before the jury was sufficient both in

quantity and quality to sustain the convictions.” Dempsey v. People, 117 P.3d 800,

807 (Colo.2005). In doing so, the Court “must ask ‘whether the evidence, viewed as

a whole, and in the light most favorable to the prosecution, is sufficient to support a

conclusion by a reasonable person that the defendant is guilty of the crimes charged

beyond a reasonable doubt.’ Kogan v. People, 756 P.2d 945, 950 (Colo.1988),

abrogated on other grounds by Erickson v. People, 951 P.2d 919, 923 (Colo.1998).

The prosecution receives the benefit of every reasonable inference that could fairly

35

be drawn from the evidence. Id. However, presumption and inferences may be drawn

only from facts established, and presumption may not rest on presumption or

inference on inference. People v. Ayala, 770 P.2d 1265, 1268 (Colo.1989) (citing

Tate v. People, 125 Colo. 527, 541, 247 P.2d 665, 672 (1952)); People v. Gibbons,

––– P.3d ––––, ––––, 2011 WL 4089964 (Colo.App. No. 09CA1184, Sept. 15, 2011).

See also, People v. Perez, —P.3d----, 2013 WL 1908991(Colo.App.No.10CA0587,

May 9, 2013,cert. granted People v. Perez, 2013 WL 6795153 (Colo. Dec 23, 2013)

(NO. 13SC465)(Court of Appeals reversed conviction for identify theft because

People failed to present sufficient evidence of an element of the crime).

In addition, more than a modicum of evidence is necessary to support a

conviction beyond a reasonable doubt, People v. Gonzales, 666 P.2d 123, 128

(Colo.1983), and a criminal verdict may not be based on “guessing, speculation [,] or

conjecture.” id. (quoting People v. Urso, 129 Colo. 292, 297, 269 P.2d 709, 711

(1954)). Perez, id.

SUMMARY: Mr. Trogdon argues that the evidence, including the testimony from

alleged victims is insufficient to support his convictions. These convictions were set

forth above in the fact section at pages 7-9. It is Mr. Trogdon’s contention that these

convictions should be vacated because the evidence supporting the jury’s verdict was

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based on conjecture and an impermissible inferences.

DISCUSSION: In the cases of the counts of conviction it is clear from the

testimony of the victims that the nexus between the property they lost and the alleged

thefts or burglaries by Mr. Trogdon is tenuous. Further, it requires in all cases that

an inference be drawn that because Mr. Trogdon was their exterminator that he had

access to their homes AND stole from them. In the case of Mr. & Mrs. Miller, there

is simply no nexus between their loss of money and the obvious and clear conjecture

that it was Mr. Trogdon who took their money. This is true with Ms. Hyde and Ms.

Lynd. That is, Mr. Trogdon did not have free access to their homes and he was only

there with their permission. Regarding Ms. Lynd, Tr. 1/12/12, p. 951, lines 13-15;

Regarding Ms. Hyde, Tr. 1/12/12, p. 1016, lines 7-9.

Second degree burglary requires that the People prove that a person

knowlingly broke an entrance into, entered unlawfully in, or remains unlawfully after

a lawful or unlawful entry in a building or occupied structure with intent to commit

a crime therein. §18-4-203(1), C.R.S. 2010, as amended. It is clear that Mr. Trogdon

was allowed to stay in the Miller’s home after being confronted by Ms. Miller. Not

only that, there is no evidence that after finding him in her bedroom that she asked

him to leave or that she engaged in any conduct that he would infer that she wanted

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him to leave. This was underscored by the fact that he asked if he could get her dog

a treat and she said that he could and she stayed with him while he gave the dog a

treat out by the truck. One has to make an unreasonable inference from her

description of events that he was not invited to her home or had no authority to be

there. Ms. Miller never asked him to leave. See, Tr. Jan 13, 2012, pp. 1225, lines

18-20 (“I did not want to talk to him [Mr. Trogdon] because of what [Ms. Sower] told

me”]; lines 21-25; pp. 1226 - 1229, lines 1-10; pp. 1239- 1241, lines 1-12.

When asked about the missing money on cross examination, Ms. Miller

confirmed that regarding the loss of money in 2009 she did not contact police. And,

that money had been in the dresser drawer where she found Mr. Trogdon on October

27, 2010. After the first moneys were lost or stolen, Mr. & Mrs. Miller put their case

in a safe. And, the $4,400.00 she reported missing to the Sheriffs in October 2010,

was stolen from the safe. And, Ms. Miller conceded that whomever took the money

from the safe, must have known it was in the safe and not the dresser drawer. Ms.

Miller watched Mr. Trogdon go directly to the dresser not to the safe. Tr. Jan 13,

2012, pp. 1241, lines 13-25 - 1244, line 1.

Ms. Miller speculated about who stole her money. That speculation led to

inferences. Her cash was not identified and though cash was found, it should have

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been suppressed, as argued above. Regardless, the evidence is insufficient for

conviction on Count 1.

First, as argued above regarding the cash seized from Mr. Trogdon’s property

on November 30, 2010, there is no identifying information that that cash was taken

from the Millers. In fact, Ms. Miller herself admitted on cross examination that she

could not tell if any money was taken.

In similar fashion the People failed to make connections between the

speculation of the victims and the elements of the crimes of conviction. In the case

of Mr. Neder, it cannot be said that property found in Mr. Trogdon’s home was from

a recent burglary or theft of Mr. Neder’s home. Mr. Neder reported the property

stolen in 2008 [Tr. 1/12/12, p. 1040, lines 3-12]. These same principles apply to all

of the counts of conviction. Ms. Hyde’s thefts were not recent in so far as the finding

of property at Mr. Trogdon’s place was concerned. Nor was the property that

allegedly belonged to Arthur Combs. The “recent” element was simply not present

in these cases.

For the foregoing reasons, Mr. Trogdon’s convictions should be vacated and

the matter remanded for entry of judgments of acquittal on the counts of conviction.

CONCLUSION

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WHEREFORE, Mr. Trogdon requests that this Court vacate his convictions

and sentences and remand the matter for entry of judgment consistent with that result.

Dated this 25TH day of March, 2014

RESPECTFULLY SUBMITTED,

THE LAW OFFICE OF DAVID C. JAPHA, P.C.

David C. Japha, #14434Attorney for Appellant950 S. Cherry Street, Ste. 912Denver, Colorado 80246(303) 964-9500

CERTIFICATE OF SERVICE

I hereby certify that a true an correct copy of the foregoing CORRRECTEDAMENDED OPENING BRIEF has been served on the following either by US Mailor by ICCES, on this 25th day of March, 2014:

Ms. Victoria M. Cisneros, Assistant Attorney GeneralOffice of the Attorney GeneralICCES

Via US Mail to:Mr. Charles Trogdon, #158761Colorado Territorial Correctional FacilityPO Box 1010Canon City, Colorado 81215-1010

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